TACDL’s 2002 Death Penalty Conference
Team Defense: The Basics & Beyond
Ethics: One Case, One Client
Nashville, Tennessee
April 27, 2002
8:30 a.m. B 9:30 a.m.
David M. Siegel
New England School of Law
154 Stuart Street
Boston, MA 02116
(617) 422-7270 / (617) 422-7453 (fax)
2
NOTE: As you doubtless know, Tennessee is in the process of changing from ethical rules based
upon the ABA Model Code of Professional Responsibility (in Tennessee Supreme Court Rule 8)
to rules based upon the ABA Model Rules of Professional Conduct. For simplicity, these are
referred to as the AOld Code@ (i.e., the existing Tennessee Code of Professional Responsibility) to
the ANew Rules@ (i.e., the Proposed Tennessee Rules of Professional Conduct).
1.
Your ethical obligations as a criminal defense lawyer continue even when a former client
claims ineffective assistance.
1
These obligations transcend the termination of the relationship.
2
Nowhere are they more important than in the capital context.
3
Even as a witness, before a court, called by the prosecutor, in ethical terms you
have obligations to but one case and one client.
2.
Ethical Obligations Implicated in a PostConviction Challenge of Ineffectiveness.
1
Obligations to the Former Client
.1
Duty of Loyalty
.1
Limits post-representation disclosure of damaging information that
was gained during the representation; and
.2
May require volunteering of information to former client=s
subsequent counsel that would benefit former client.
.2
Duty of Competent Representation
.1
Bars agreements limiting the lawyer=s malpractice liability during
representation and waivers of postconviction rights in guilty pleas;
.2
May permit knowing waiver postconviction rights in capital
context?
.3
Duty of Zealous Representation
2
Other Obligations
2
.1
Duty of Candor to the Tribunal (New Rules, Proposed Rule 3.3)
.1
May require disclosure of ineffectiveness while representing client;
.2
May suggest obligation to disclose ineffectiveness even after
representation.
3.
How, for the criminal defense lawyer facing a postconviction claim, do the applicable
Proposed Tennessee Rules of Professional Conduct (ANew Rules@) differ from the
existing the Tennessee Code of Professional Responsibility (AOld Code@)?
1
The New Rules, unlike the Old Code, and unlike the ABA Model Rules of
Professional Conduct, specifically acknowledge the constitutional obligations of
criminal defense counsel, and their impact on the ethical rules.
Rule 3.3, Proposed Tennessee Rules of Professional Conduct (Candor to the Tribunal), Note 17
states: AThese Rules apply to defense counsel in criminal cases, as well as in other instances.
However, the definition of the lawyer=s ethical duty in such a situation may be qualified by
constitutional provisions for due process and the right to counsel in criminal cases. The
obligation of the advocate under these Rules is subordinate to any such constitutional
requirement.@
2
The New Rules impliedly impose a duty to affirmatively try to rectify one=s less
than competent representation of a client. This Comment was deleted from the
New Rules, although the Committee Notes from the TBA Committee for the
Study of the Standards of Professional Conduct explained that this Adeletio[n was]
made to bring proposed Tennessee Rule 1.1 into conformity with ABA Model
Rule 1.1 Although the Committee approved the substance of the deleted material,
it was the conclusion that it was not sufficiently important to warrant sacrificing
the uniformity that comes with adoption of the ABA Model Rule.@
Comments to Proposed Rule 1.1, & 10: AIf a lawyer comes to know that he or she has not
provided competent representation to a client and that the failure to do so is likely to have or has
had a material adverse effect on the representation of the client, the lawyer should try to prevent
or rectify the adverse effect. If unable to do so, the lawyer should consult with the client about
the problem and act reasonably to compensate client for losses caused by the failure of the
lawyer to provide the competent representation required by this rule.@
3
3
The New Rules expand both the scope of information gained during the
representation that may be disclosed, and the circumstances under which
disclosure is permissible, after an allegation of wrongful conduct by counsel.
.1
A wider scope of information gained during the representation would be
subject to disclosure.
.1
New Rules: AA lawyer may reveal information relating to
representation of a client. . . .@ Prop. Rule 1.6(b)
.2
Old Code: AA lawyer may . . . reveal confidences or secrets
necessary to . . . defend the lawyer or the lawyer=s employees or
associates against an accusation of wrongful conduct.@
(AConfidence@ is information protected by the attorney-client
privilege, Asecret@ is other information gained in the professional
relationship that the client has requested be held inviolate or whose
disclosure would be embarrassing or likely detrimental to the
client.) DR 4-101(C)(4).
.2
Disclosure would be permitted under a wider range of circumstances.
.1
New Rules: Ato establish a claim or defense on behalf of the lawyer
in a controversy between the lawyer and the client, to establish a
defense to a criminal charge or civil claim against the lawyer based
upon conduct in which the client was involved, or to respond to
allegations in any proceeding concerning the lawyer=s
representation of the client.@ Prop. Rule 1.6(b)(5).
.2
Old Code: Ato defend the lawyer or the lawyer=s employees or
associates against an accusation of wrongful conduct.@ DR 4-
101(C)(4).
4.
Three Continuing Ethical Obligations Apply when Your Former Client Challenges Your
Effectiveness.
1
Duty of Loyalty to the Former Client
.1
Sources
4
.1
The Old Code addresses the duty of loyalty to former clients by
implication through the duty of confidentiality.
)1
EC
4-6
provides: AThe obligation of a lawyer to preserve
the confidences and secrets of the client continues after the
termination of employment.@
)2
DR 4-101(B) provides: A[A] lawyer shall not knowingly . . .
(1) reveal a confidence or secret of a client.@ Note that
there is an exception to this in DR 4-101(C)(4): AA lawyer
may reveal (4) Confidences or secrets necessary to . . .
defend the lawyer or the lawyer=s employees or associates
against an accusation of wrongful conduct.@
.2
The New Rules address the duty of loyalty to former clients as a
conflicts matter. They expand the circumstances under which
disclosure is possible and the scope of the disclosures.
)1
Proposed Rule 1.9(c) (Conflict of Interest: Former Client) -
AUnless the former client consents after consultation, a
lawyer who has formerly represented a client in a matter . .
. shall not thereafter: (1) use information relating to the
representation to the disadvantage of the former client
except as these Rules otherwise permit or require with
respect to a client, or when the information has become
generally known; or (2) reveal information relating to the
representation of the former client except as these Rules
otherwise permit or require with respect to a client.@
.2
The duty of loyalty to the client continues beyond the end of the
representation.
.1
Old Code
)1
EC 4-5 provides: AA lawyer should not use information acquired in
the course of the representation of a client to the disadvantage of
the client.@
)2
DR 4-101(B) provides: A[A] lawyer shall not knowingly . . .
(1) reveal a confidence or secret of a client.@
5
.2
New Rules
)1
Proposed Rule 1.9(c) (Conflict of Interest: Former Client)
(above).
)2
Note that there is now a mandatory Duty of Candor to the
Tribunal that may affect counsel=s obligations in the
postconviction text. Proposed Rule 1.6(c):
A lawyer shall reveal information relating to the representation of a client to the extent the
lawyer reasonably believes disclosure is necessary: (1) to comply with an order of a tribunal
requiring disclosure but only if ordered to do so by the tribunal after the lawyer has asserted on
behalf of the client all non-frivolous claims that the information sought by the tribunal is
protected against disclosure by the attorney-client privilege or other applicable law, [or] to
comply with [The Duty of Candor to the Tribunal].@
.3
AThe relationship between an attorney and a client is highly
fiduciary in its nature and of a very delicate, exacting, and
confidential character, requiring a high degree of loyalty and good
faith. This fiduciary relationship exists as a matter of law between
an attorney and client; this requires all transactions between them
growing out of such relationship to be subject to the closest
scrutiny and involving the highest degree of personal trust and
confidence.@ JOHN WESLEY HALL,
J®., Professional Responsibility
of the Criminal Defense Lawyer, '4:6, p. 87 (Clark, Boardman,
Callahan, 2d ed., 1996)(footnotes omitted).
.3
A limited exception to the duty of loyalty applies when a former client
brings a claim of ineffective assistance.
.1
The former client=s claim of ineffective assistance triggers an
exception to the duty that permits the revelation of information.
)1
Old Code: DR 4-101(C)(4) provides: AA lawyer may
reveal: . . . [c]onfidences or secrets necessary . . . to defend
6
the lawyer or the lawyer=s employees or associates against
an accusation of wrongful conduct.@
)2
New Rules: Proposed Rule 1.6(b)(5) would provide: AA
lawyer may reveal information relating to the
representation of a client to the extent the lawyer
reasonably believes disclosure is necessary . . . (5) . . . to
respond to allegations in any proceeding concerning the
lawyer=s representation of the client.@
)1
The filing of a complaint with the disciplinary board
triggers the exception in DR 4-101(C).
Kalyawongsa v. Moffett, 105 F.3d 283, 290 (6th Cir.
1997).
.2
The exception is limited in scope.
)1
Under the Old Code, the exception is limited to confidences
or secrets Anecessary@ to defend against the allegation, not
everything. DR 4-101(C)(4).
)2
Under the New Rules, the scope is perhaps slightly more
limited, as it applies only Ato the extent the lawyer
reasonably believes disclosure is necessary.@ Proposed
Rule 1.6(b)(5). That is, the lawyer must objectively believe
the disclosure is necessary.
)3
The scope of what may be disclosed under the New Rules
tracks the ABA Standards for Criminal Justice - Defense
Function, which explicitly apply to the postconviction
context. Standard 4-8.6(d) provides: A(d) Defense counsel
whose conduct of a criminal case is drawn into question is
entitled to testify concerning the matters charged and is not
precluded from disclosing the truth concerning the
accusation to the extent defense counsel reasonably
believes necessary, even though this involves revealing
matters which were given in confidence.@ (Emphasis
supplied).
)4
The allegation of ineffective assistance has been held to
effectively waives the attorney-client privilege to the extent
7
that the state shows information possessed by trial counsel
is Avital to its defense in the postconviction action.@ Bryan
v. State, 848 S.W.2d 72, 81 (Tenn.Crim.App. 1992)
(defendant=s version of events challenging validity of his
guilty plea as not knowingly, voluntarily and
understandingly entered cannot be used as sword while
using privilege as a shield to keep his former counsel from
answering the claim).
)5
Note Bryan did not involve a claim of ineffective
assistance, although it would likely apply to one.
)6
See also
Biles v. State, 1991 Tenn Crim App LEXIS 900
(rejecting argument that privilege applies in challenge to
guilty plea where ineffective assistance of counsel not
raised) and Clifton v. State, 1994 Tenn Crim App LEXIS
219.
2
Duty of Competent Representation
.1
Sources
.1
The Old Code addresses the duty of competent representation to
former clients by implication through the duty of confidentiality.
)1
Canon 6: AA Lawyer Should Represent a Client
Competently.@
)2
DR 6-101: AA Lawyer shall not: Handle a legal matter
which the lawyer knows or should know that the lawyer is
not competent to handle, without associating with a lawyer
who is competent to handle it.@
.2
The New Rules define competence and, by implication from the
deleted comments, explain what counsel should do if counsel has
not been competent. Proposed Rule 1.1 (Competence): AA lawyer
shall provide competent representation to a client. Competent
representation requires the legal knowledge, skill, thoroughness
and preparation reasonably necessary for the representation.@
8
)1
Deleted (but approved in substance) Comments to
Proposed Rule 1.1, & 10: AIf a lawyer comes to know that
he or she has not provided competent representation to a
client and that the failure to do so is likely to have or has
had a material adverse effect on the representation of the
client, the lawyer should try to prevent or rectify the
adverse effect. If unable to do so, the lawyer should
consult with the client about the problem and act
reasonably to compensate client for losses caused by the
failure of the lawyer to provide the competent
representation required by this rule.@
.2
The Obligation of Competent Representation precludes you from taking
steps while representing the client that will prevent them from vindicating
their right to have been competently represented after the fact.
.1
While violations of the disciplinary rules do not necessarily
amount to ineffective assistance, Nix v. Whiteside, 475 U.S. 157,
165 (1986) (Abreach of an ethical standard does not necessarily
make out a denial of the Sixth Amendment guarantee of assistance
of counsel@), some can. Holloway v. Arkansas, 435 U.S. 475, 490
(1978) (representing over counsel=s objection three codefendants,
prevented from cross-examining any on behalf of others).
.2
Since representation that is not professionally competent may be
constitutionally ineffective, the prohibition on limiting a client=s
post-representation claims for malpractice suggests one cannot
limit later challenges for ineffectiveness.
)1
No client agreements to limit malpractice liability.
)1
Old Code: DR 6-102(A),Tenn.S.Ct.Rule 8,
provides: AA lawyer shall not attempt to
exculpate or limit liability to clients for
personal malpractice.@
9
)2
New Rules: Rule 1.8(h)(1) (CONFLICT OF
INTEREST: PROHIBITED
TRANSACTIONS) provides: AA lawyer
shall not: . . . enter into an agreement with a
prospective, current, or former client to
prospectively limit the lawyer=s liability to
the client for malpractice[.]@
)2
The Tennessee Board of Professional Responsibility
has opined that, pursuant to DR 6-102(A), Aneither a
prosecutor or [sic] defense counsel can ethically
include a provision in a plea agreement which
waives the defendant=s right to allege ineffective
assistance of counsel or prosecutorial misconduct.@
Tenn.Bd.Prof.Resp., Advisory Op. 94-A-549 (1994)
(attached).
.3
The substance of the New Rules thus suggest that one must rectify one=s
less than ethically competent representation, even if it is not necessarily
constitutionally ineffective.
.1
Deleted Comments to Proposed Rule 1.1, & 10 (AIf a lawyer comes
to know that he or she has not provided competent representation
to a client and that the failure to do so is likely to have or has had a
material adverse effect on the representation of the client, the
lawyer should try to prevent or rectify the adverse effect.@)
(emphasis supplied).
)1
Note Amaterial adverse@ effect requirement.
)2
Note that professional lack of competence - even when it
amounts to nondisclosure of a non-waivable conflict - may
not necessarily be constitutional ineffectiveness. See
Mickens v. Taylor, 2002 WL 459251, 122 S.Ct. 1237, 70
USLW 4216 (3/27/2002) [Link to this case at end of
paper] (ethical violation from capital defendant=s counsel
having briefly represented victim at time he was allegedly
killed by defendant did not amount to Aactual conflict@ of
interest that would preclude requirement of effect on
outcome) (copy [link at end of paper] attached).
10
.2
Proposed Rule 1.1. might thus suggest
)1
At least an obligation to volunteer, identify or highlight to
the former client=s present counsel areas in which you may
have been less than effective, and
)2
Perhaps (combined with Proposed Rule 3.3's Obligation of
Candor to the Tribunal) an obligation to volunteer such
instances to the court.
3
Duty of Zealous Representation
.1
Sources
.1
Old Code
)1
Cannon 7 provides: AA Lawyer should represent a Client
Zealously within the Bounds of the Law.@
)2
DR 7-101(A)(4)(c) provides: AA lawyer shall not
intentionally: . . . (c) prejudice or damage the client during
the course of the professional relationship, except as
required under DR 7-102(B) [the crime-fraud exception].@
.2
New Rules
)1
Comment, Prop. Rule 1.3 (Diligence), &1: AA lawyer
should act with commitment and dedication to the interests
of the client and with zeal in advocacy upon the client=s
behalf.@
.2
But note that even after the end of the representation, the attorney-client
privilege, the duty to maintain confidences and secrets continue, and the
duty not to prejudice the client in the withdrawal all continue.
11
5.
The Meaning of One Case, One Client
1
The case and the client transcend your representation.
2
After representation, the next counsel may - as a part of their duty of zealous
representation, challenge your effectiveness.
3
What do your duties of loyalty to the client, competence and zealous
representation require of you for the former client?
.1
Fully cooperate with post-conviction counsel.
.1
Provide the file, papers and property of the client.
)1
Canon 2 of the Old Code provides: AA Lawyer Should
Assist the Legal Profession in Fulfilling Its Duty to Make
legal Counsel Available.@
)2
The defense lawyer=s obligation to make legal counsel
available requires that counsel take care to protect the
interests of a client when terminating the representation.
)3
EC 2-32 provides in relevant part: AEven when the lawyer
justifiably withdraws, a lawyer should protect the welfare
of the client by giving due notice of his withdrawal,
suggesting employment of other counsel, delivering to the
client all appears and property to which the client is
entitled, cooperating with counsel subsequently employed,
and otherwise endeavoring to minimize the possibility of
harm.@
)4
DR 2-110(A)(2) provides: A[A] lawyer shall not withdraw
from employment until the lawyer has taken reasonable
steps to avoid foreseeable prejudice to the rights of the
client, including giving due notice to the client, allowing
time for employment of other counsel, delivering to the
client all appears and property to which the client is
entitled, and complying with applicable laws and rules.@
12
)5
Whether an attorney is discharged by a client or voluntarily
withdraws, Athe attorney should turn over to the client all
papers and property@ to which the client is entitled,
including the client=s file and all other information
generated in representing the client which was not
conditioned upon non-disclosure to the client.@ Crawford
v. Logan, 656 S.W.2d 360, 363 (Tenn. 1983) (discharged
divorce lawyer, who withheld tape of interview with
woman who allegedly had an affair with the husband of his
former client, violated DR 2-110(A)(2)).
.2
Provide information relevant to the claim of ineffective assistance which is
not in the file, papers or property of the client, including absences in the
record and counsel=s strategic thinking.
.1
The California State Bar Commission on Professional
Responsibility has opined as follows:
In the criminal context, appellate counsel has a duty to identify
arguable issues and raise them on direct appeal or in related writ
proceedings. Full and prompt disclosure by trial counsel of
matters which may not be in the record provides for expeditious
processing of the client=s case. Where trial counsel refuses to
cooperate with the investigation of a claim of ineffective assistance
of counsel, the end result may be that formal habeas proceedings
may be instituted prematurely by appellate counsel, and this may
work to the detriment of the client. In such situations, trial
counsel=s refusal to cooperate may harm the client, and by
harming the client, counsel is violating the ethical duty she owes
her client.
We believe that the Rules of Professional Conduct impose a duty
upon trial counsel to fully and candidly discuss matters relating to
the representation of the client with appellate counsel and to
respond to the questions of appellate counsel, even if to do so
would disclose that trial counsel failed to provide effective
assistance of counsel. This decision is in accord with the general
13
rules that the attorney owes a duty of complete fidelity to the client
and to the interests of the client.@¹
.2
The ABA Standards for Criminal Justice - Defense Function
provide that collateral counsel should pursue relief Awithout
hesitat[ion]@ for those who are determined to have not received
effective assistance of counsel, and defense counsel should
withdraw if they realize that they failed to render effective
assistance of counsel in an earlier phase.
)1
ABA Standard 4-8.6(a) provides: If defense counsel, after
investigation, is satisfied that another defense counsel who
served in an earlier phase of the case did not provide
effective assistance, he or she should not hesitate to seek
relief for the defendant on that ground.
)2
ABA Standard 4-8.6(b) provides: If defense counsel, after
investigation, is satisfied that another defense counsel who
served in an earlier phase of the case provided effective
assistance, he or she should so advise the client and may
decline to proceed further.
)3
ABA Standard 4-8.6(c) provides: If defense counsel
concludes that he or she did not provide effective assistance
in an earlier phase of the case, defense counsel should
explain this conclusion to the defendant and seek to
withdraw from representation with an explanation to the
court of the reason therefor.
)4
ABA Standard 4-8.6 (Commentary) explains:
Since counsel must zealously represent his or her client=s
interests at all times, where appellate counsel was also trial
counsel, such posttrial representation should also include
scrutiny of counsel=s own representation of the client at
trial. Where counsel concludes that his or her prior
representation was ineffective, in the interests both of
effective representation and avoidance of conflicts in
interest, counsel should explain this conclusion to the client
and seek permission from the court to withdraw from
1 Cal. St. Bar. Comm. Prof. Resp., Ethics Opinion 1992-127 at p. 3 (1992 WL 166235, *3)
(Emphasis supplied) (copy attached). [Link to this Opinion at end of paper]
14
further representation on this basis. Commentary, p. 248
(3d ed. 1993).
6.
Obligatory Practices
1
Prompt and Complete Disclosure of Files and Notes to Former Client=s Post-
Conviction Counsel
2
Current ethical rules make clear that the files concerning a former client belong to
the client, not the lawyer. This is the case even if the former client is alleging
ineffective assistance on the part of the lawyer. Both the Model Rules and the
Model Code dictate return of a former client's Apapers,@ and to fully satisfy the
ethical obligations of loyalty, this should include any document or item obtained
for or generated in connection with the representation, whether it was actually
used in the representation or not.
3
Volunteering the Absences in the Record
The duty of loyalty to the former client means at least not
hindering the former client's postconviction efforts. These
effort typically include making the best possible case for
the original lawyers's ineffective assistance, and the case
for ineffective assistance is often made through what was
not done as what was done. Insufficient investigation, use
of witnesses, and pretrial litigation have all been the basis
for findings of ineffective assistance, yet the decision to not
do something is necessarily almost never noted in the files.
Absent such evidence, even the most searching
postconviction counsel cannot know what was not done.
Thorough investigation in the postconviction process may
identify some steps not taken, but even the best
investigation (often years after the fact) will not be likely to
discover a possible line of inquiry which counsel chose not
to pursue. Thus volunteering what was not in the record,
what was not investigated, examined, researched,
considered or asked, is an ethical obligation of the lawyer
whose former counsel brings a postconviction action.
4
Volunteering of Strategic Thinking
15
5
Whether something was done by counsel in the course of representation is
important for two reasons. First, most obviously, the failure to do something may
have rendered the representation not reasonably effective. Second, even if the
representation was not reasonably effective, the failure to do something is
important in order to show prejudice, a requirement for relief under Strickland.
Why something was not done, however, is often as important in determining
prejudice as what was not done. The failure to litigate an issue because it was not
recognized, for example, could certainly be a basis for ineffective assistance. The
failure to litigate an issue based on a strategic decision to not present otherwise
damaging, admissible information to the government in the course of litigating the
issue would not be ineffective. The key to this distinction is the strategic thinking
of the lawyer, and learning this strategic thinking is absolutely critical to the
thorough presentation of a postconviction claim. It should be routinely and
openly presented to the postconviction counsel.
7.
Sources
1
JOHN WESLEY HALL,
J®., Professional Responsibility of the Criminal Defense
Lawyer (Clark, Boardman, Callahan, 2d ed., 1996).
2
ABA Standards for Criminal Justice: Prosecution and Defense Function (3d Ed.
1993).
3
David M. Siegel, My Reputation or Your Liberty (or Your Life):
The Ethical Obligations of Criminal Defense Counsel in
Postconviction Proceedings, 23
J. OF THE LEGAL PROF.
85 (1999)
(attached)
4
Lucian T. Pera, Guide to Resources and Materials on Professional Responsibility
Issues, 23
MEMPHIS STATE UNIV.
L.
REV. 589 (1993).
5
TBA Petition to Tennessee Supreme Court Seeking Adoption of Proposed
Tennessee Rules of Professional Conduct (including proposed Rules, Red-lined
Versions, and Explanatory Notes):
6
Annotations
16
.1
Gregory G. Sarno, Circumstances Giving Rise to Prejudicial Conflict of
Interests Between Criminal Defendant And Defense CounselBState Cases
18 A.L.R.4th 360 (1982).
.2
Gregory G. Sarno, Circumstances Giving Rise to Prejudicial Conflict of
Interests Between Criminal Defendant And Defense CounselBFederal
Cases, 53 A.L.R. Fed. 140 (1981).
.3
Gregory G. Sarno, Legal Malpractice in Defense of Criminal Prosecution,
4 A.L.R.5th 273 (1993).